- Eleven Member States (Belgium, Bulgaria, France, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Romania and Spain) differentiate between sanctions for sexual offences depending on the victim’s age.
- Thirteen Member States (Austria, Croatia, the Czech Republic, Denmark, Estonia, Germany, Greece, Finland, Hungary, Italy, Portugal, Sweden and the United Kingdom) differentiate between sanctions for sexual offences depending on the age of both the victim and the offender. The sanction for the offender is also clearly linked to the minimum age of criminal responsibility applied in each Member State.
- Gender is a ground for differentiated sanctions in Cyprus and Ireland. In Cyprus, the gender of both the victim and the offender is taken into consideration. In Ireland, only the victim’s gender is relevant.
- In Slovenia and Slovakia, neither the victim’s nor the offender’s age or gender constitute a ground for differentiating between sanctions.
Sexual offences are “destructive to children’s health and psycho-social development” (Preamble of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Lanzarote Convention, adopted in 2007 and ratified by almost all EU Member States). Moreover, they “constitute serious violations of fundamental rights, in particular of the rights of children to the protection and care necessary for their well-being, as provided for by the 1989 United Nations Convention on the Rights of the Child and by the Charter of Fundamental Rights of the European Union” (Recital 1 of the Directive on combating the sexual abuse and sexual exploitation of children and child pornography).
The directive is a tool for approximating criminal law and obliges Member States to provide for appropriate criminal penalties in this field. Nonetheless, it leaves to Member States the power to regulate the age threshold for certain consensual sexual activities involving peers. Article 8 (1) provides that it lies within the discretion of Member States to apply different criminal treatment of persons in the case of consensual sexual activities between peers, who are close in age and degree of psychological and physical development or maturity, under the condition that these activities do not involve any abuse. The directive, moreover, does not restrict the power of Member States to adopt and implement specific criminal policies regarding child offenders. In the context of the directive, neither the child victim’s nor the offender’s gender is relevant.